Collateral Administration. (a) All tangible Collateral (except Collateral in the possession of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ hereby agrees to deliver to the Agent and Backup Servicer or, upon the request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent or any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such Leases directly in Agent’s own name, for the benefit of itself and the Lenders, and to charge collection costs and expenses, including attorney’s fees, to Borrower. (b) As and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreement (c) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its Permitted Discretion. (d) In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent or, at the request of Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at Borrower’s expense, to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent. (e) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systems.
Appears in 1 contract
Sources: Loan and Security Agreement (Katapult Holdings, Inc.)
Collateral Administration. (a) All tangible Collateral (except Collateral funds required to be deposited in the possession of Backup Servicer or AgentLockbox Accounts) will at all times be kept by Borrower or Servicer at the locations (including warehouses) set forth on Schedule 5.18B hereto, 5.18 hereto and shall not, without thirty (30) calendar days prior concurrent written notice to AgentLender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United StatesStates or Canada, as applicable.
(b) Borrower shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to Lender on such periodic basis as Lender may request. ▇▇▇▇▇▇▇▇ hereby agrees to After the occurrence and during the continuance of an Event of Default, and upon Lender’s request, Borrower shall execute and deliver to the Agent and Backup Servicer orLender formal written assignments of all of its Accounts weekly or daily as Lender may request, upon the request of the Agent, to the Servicer, on or prior to including all Accounts created since the date of each Revolving Advancethe last assignment, together with copies of invoices and/or other information related thereto. To the Verification Deliverables for each Lease extent that is collections from such assigned Accounts exceed the amount of the Obligations, such excess amount shall not accrue interest in favor of Borrower, but shall be available to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under AgentBorrower upon Borrower’s dominion and control and deemed to be in Agent’s possession. written request.
(c) Any of AgentLender’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Agent or any designee of Agent or hours upon reasonable prior notice to Borrower, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Borrower. Borrower shall cooperate fully with Agent Lender in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent verification.
(d) Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party Debtors owing Accounts to Leases held by Borrower that their Leases Accounts have been assigned to Agent Lender and to collect such Leases Accounts directly in Agent’s its own name, for the benefit of itself and the Lenders, name and to charge collection costs and expenses, including attorney’s reasonable attorneys’ fees, to Borrower.
(be) As and when determined by Agent Lender in its sole discretionPermitted Discretion, Agent will Lender shall have the right to perform the searches described in clauses (i) and (ii) below against Borrower and any Guarantors (the results of which are to be consistent with Borrower’s representations and warranties under this Agreement), Servicer and Holdingsat Borrower’s reasonable expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings Borrower maintains their its executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreement
(c) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request assets or in its Permitted Discretion.
(d) In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent or, at the request of Agent, Servicer (i) the original Portfolio Documentsthey are organized; and (ii) originals judgment and federal, state and local tax lien searches, in each jurisdiction searched under clause (i) above.
(f) Borrower (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall direct each Account Debtor to make payments to the Lockbox Account as set forth in Section 2.5, and Borrower hereby authorizes Lender, upon any failure to send such notices and directions within ten (10) calendar days after the date of this Agreement (or true copies ten (10) calendar days after the Person becomes an Account Debtor), to send any and all similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Lender to secure Lender and effectuate the intentions of the truth-in-lending disclosure statements andLoan Documents.
(g) As of the Closing Date, if except as disclosed on Schedule 5.3, no Borrower has any ownership interest in any Chattel Paper (as defined in Article 9 of the UCC), letter of credit rights, commercial tort claims, Instruments, documents or investment property (other than equity interests in any Subsidiaries of such Borrower disclosed on Schedule 5.3) and Borrowers shall give notice to Lender promptly (but in any event not later than the delivery by Borrowers of the next Borrowing Certificate required pursuant to Section 2.4 above) upon the acquisition by Agentany Borrower of any such Chattel Paper, lease applicationsletter of credit rights, commercial tort claims, Instruments, documents, investment property. No Person other than any related Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including Securities Accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, Securities Account Lessee’s acknowledgments or commodities account of Borrowers is maintained).
(h) Borrowers will conduct a physical count of the Inventory at the locations which contain Eligible Inventory at least once per year and understandingsat such other times as Lender requests, and other receipts Borrowers shall provide to Lender a written accounting of such physical count in form and payment authorization agreementssubstance satisfactory to Lender. Each Borrower will use commercially reasonable efforts to at all times keep its Inventory in good and marketable condition. In addition to the foregoing, which shall be deliveredfrom time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports in form and substance and from appraisers reasonably satisfactory to Lender stating the then current fair market values of all or any portion of Inventory owned by each Borrower or any Subsidiaries.
(i) In addition to the foregoing, from time to time, Lender may require Borrowers to obtain and deliver to Lender appraisal reports, at the Borrower’s expense, in form and substance and from appraisers reasonably satisfactory to Agent Lender stating the then current Orderly Liquidation Values, as required by the Lender, and fair market values of all or any portion of Inventory, Intellectual Property and furniture, fixtures and equipment owned by each Borrower or any Subsidiaries.
(j) Borrowers shall not adjust, settle or compromise the amount or payment of any Account, or release wholly or partly any Account Debtor, or allow any credit or discount thereon (other than adjustments, settlements, compromises, credits and discounts in the ordinary course of business, made while no Default exists and in amounts which are not material with respect to the Account and which, after giving effect thereto, do not cause the Borrowing Base to be less than the Revolving Loans outstanding) without the prior written consent of Lender. Without limiting the generality of this Agreement or any other provisions of any of the Loan Documents relating to the rights of Lender after the occurrence and during the continuance of an Event of Default, Lender shall have the right at its address any time after the occurrence and during the continuance of an Event of Default to: (i) exercise the rights of Borrowers with respect to the obligation of any Account Debtor to make payment or otherwise render performance to Borrowers and with respect to any property that secures the obligations of any Account Debtor or any other Person obligated on the Collateral, and (ii) adjust, settle or compromise the amount or payment of such Accounts.
(k) Without limiting the generality of Sections 2.10(g) and (j):
(A) Borrowers shall deliver to Lender all tangible Chattel Paper and all Instruments and documents owned by any Borrower and constituting part of the Collateral duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Lender. Borrowers shall provide Lender with “control” (as defined in Article 9 of the UCC) of all electronic Chattel Paper owned by any Borrower and constituting part of the Collateral by having Lender identified as the assignee on the records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of control set forth herein or as otherwise specified by Agent andin the UCC. Borrowers also shall deliver to Lender all security agreements securing any such Chattel Paper and securing any such Instruments. Borrowers will ▇▇▇▇ conspicuously all such Chattel Paper and all such Instruments and documents with a legend, except as otherwise expressly provided herein in form and substance satisfactory to Lender, indicating that such Chattel Paper and such instruments and documents are subject to the contrarysecurity interests and Liens in favor of Lender created pursuant to this Agreement and the Security Documents.
(B) Borrowers shall deliver to Lender all letters of credit on which any Borrower is the beneficiary and which give rise to letter of credit rights owned by such Borrower which constitute part of the Collateral in each case duly endorsed and accompanied by duly executed instruments of transfer or assignment, held all in Agent’s custody orform and substance satisfactory to Lender. Borrowers shall take any and all actions as may be necessary or desirable, or that Lender may request, from time to time, to cause Lender to obtain exclusive “control” (as defined in Article 9 of the UCC) of any such letter of credit rights in a manner acceptable to Lender.
(C) Borrowers shall promptly advise Lender upon any Borrower becoming aware that it has any interests in any commercial tort claim that constitutes part of the Collateral, which such notice shall include descriptions of the events and circumstances giving rise to such commercial tort claim and the dates such events and circumstances occurred, the potential defendants with respect such commercial tort claim and any court proceedings that have been instituted with respect to such commercial tort claims, and Borrowers shall, with respect to any such commercial tort claim, execute and deliver to Lender such documents as Lender shall request to perfect, preserve or protect the Liens, rights and remedies of Lender with respect to any such commercial tort claim.
(D) No Accounts or Inventory or other Collateral shall at any time be in the possession or control of any warehouse, consignee, bailee or any of Borrowers’ agents or processors without prior written notice to Lender and the receipt by Lender, if Agent Lender has so requested, Servicer’s of warehouse receipts, consignment agreements or Backup Servicer’s custody until all bailee lien waivers (as applicable) satisfactory to Lender prior to the commencement of such possession or control. Borrower has notified Lender that Inventory is currently located at the locations set forth on Schedule 5.18. Borrowers shall, upon the request of Lender, notify any such warehouse, consignee, bailee, agent or processor of the Obligations have been fully satisfied security interests and Liens in favor of Lender created pursuant to this Agreement and the Loan Documents, instruct such Person to hold all such Collateral for Lender’s account subject to Lender’s instructions and shall obtain an acknowledgement from such Person that such Person holds the Collateral for Lender’s benefit.
(E) Borrowers shall cause all equipment and other tangible Personal Property other than Inventory to be maintained and preserved in the same condition, repair and in working order as when new, ordinary wear and tear excepted, and shall promptly make or Agent expressly agrees cause to release be made all repairs, replacements and other improvements in connection therewith that are necessary or desirable to such custody end. Upon request of Lender, Borrowers shall promptly deliver to Lender any and all certificates of title, applications for title or similar evidence of ownership of all such tangible Personal Property and shall cause Lender to be named as lienholder on any such certificate of title or other evidence of ownership. Borrowers shall not permit any such tangible Personal Property to become fixtures to real estate unless such real estate is subject to a Lien in favor of Lender.
(F) Each Borrower acknowledges that Lender is authorized to file without the signature of such documents. In respect Borrower one or more UCC financing statements relating to liens on personal property relating to all or any part of the portion Collateral, which financing statements may list Lender as the “secured party” and such Borrower as the “debtor” and which describe and indicate the collateral covered thereby as all or any part of the Collateral consisting under the Loan Documents (including an indication of the collateral covered by any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control such financing statement as “all assets” of such transferable electronic record in accordance with Applicable Law (to ensureBorrower now owned or hereafter acquired), among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address jurisdictions as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent.
(e) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may Lender from time to time be input determines are appropriate, and to file without the signature of such Borrower any continuations of or stored within Borrower’s corrective amendments to any such financing statements, in any such case in order for Lender to perfect, preserve or Servicer’s computers and/or computer records protect the Liens, rights and remedies of Lender with respect to the Collateral. Each Borrower also ratifies its authorization for Lender to have filed in any jurisdiction any initial UCC financing statements or amendments thereto if filed prior to the date hereof.
(G) As of the Closing Date, no Borrower holds, and after the Closing Date Borrowers shall promptly notify Lender in writing upon creation or acquisition by any Borrower of, any Collateral which constitutes a claim against any Governmental Authority, including, without limitation, diskettesthe federal government of the United States or any instrumentality or agency thereof, tapes the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other computer software comparable Law. If any Collateral at any time constitutes a claim against a Governmental Authority, upon the request of Lender, Borrowers shall take such steps as may be necessary or desirable, or that Lender may request, to comply with any such applicable Law.
(H) Borrower shall provide Lender with a letter agreement acceptable in form and computer systemssubstance to Lender with regards to each manufacturer of Borrower that as of the Closing Date and from time to time thereafter accounts at any time for five percent (5%) or more of Borrower’s aggregate Inventory pursuant to which such manufacturer shall (i) consent to the assignment by Borrower to Lender of all of Borrower’s rights and remedies under such manufacturing agreement and (ii) upon the occurrence of an Event of Default hereunder, agree to work with Lender to complete the production of any Inventory that manufacturer is manufacturing on behalf of Borrower at such time.
(I) Borrower shall provide Lender with a collateral assignment acceptable in form and substance to Lender of each Services Outsourcing Agreement entered into by Borrower as of the Closing Date from time to time thereafter, including without limitation the ▇▇▇▇▇▇▇ Agreement, which collateral assignment shall be by and between Borrower and Lender and acknowledged by each Servicer party to such Services Outsourcing Agreement.
(J) Borrowers shall furnish to Lender from time to time any statements and schedules further identifying or describing the Collateral and any other information, reports or evidence concerning the Collateral as Lender may reasonably request from time to time.
Appears in 1 contract
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer Borrowers at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ hereby agrees to deliver to the Agent and Backup Servicer orWhether or not an Event of Default has occurred, upon the request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any any of Agent’s 's officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Agent Agent, or any designee of Agent or BorrowerBorrowers, to verify the validity, amount or any other matter relating to the Collateral. Borrower Borrowers shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to and notwithstanding any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party Persons owing Accounts to Leases held by Borrower Borrowers that their Leases Accounts have been assigned to Agent and to collect such Leases Accounts directly in Agent’s its own name, for the benefit of itself and the Lenders, name and to charge collection costs and expenses, including reasonable attorney’s 's fees, to BorrowerBorrowers. Borrowers shall endeavor in the first instance to make collection of their respective Accounts for Agent, for the account of Lenders.
(b) As and when determined by Agent in its sole discretionPermitted Discretion, Agent will perform the searches described in clauses (i) and (ii) below against BorrowerBorrowers (the results of which are to be consistent with Borrowers' representations and warranties under this Agreement), Servicer and Holdingsall at Borrowers' expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrowerany Borrower and/or any Guarantors are organized and/or maintain their respective executive offices, Servicer a place of business or Holdings is organizedassets; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreementsearched under clause (i) above.
(c) Borrower Upon Agent's request, Borrowers shall promptly deliver to Agent all items for which Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Agent.
(d) Borrowers shall, and shall cause their Subsidiaries to, keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis bases as Agent may request in its Permitted Discretion.
(d) . In respect addition, if Accounts of Borrowers in an aggregate face amount in excess of $100,000 become ineligible because they fall within one of the portion specified categories of ineligibility set forth in the definition of Eligible Receivables, Borrowers shall notify Agent of such occurrence no later than five (5) Business Days following such occurrence and the Borrowing Base shall thereupon be adjusted to reflect such occurrence. In addition, if any Eligible Equipment of Borrower the purchase of which was in part funded by any Draw, becomes ineligible because it falls within one of the Collateral consisting specified categories of ineligibility set forth in the definition of Eligible Equipment, Borrowers shall notify Agent of such occurrence within five (5) Business Days following such occurrence. If requested by Agent upon or at any Lease which is evidenced by time after the occurrence and during the continuation of an electronic record that is not a transferable record under Applicable LawEvent of Default, Borrower Borrowers shall execute and deliver to Agent or, at the request of Agent, Servicer (i) and shall cause each of their Subsidiaries to execute and deliver, formal written assignments of all of their respective Accounts as Agent may request, including all Accounts created since the original Portfolio Documents; and (ii) originals or true date of the last assignment, together with copies of claims, invoices and/or other information related thereto. To the truth-in-lending disclosure statements andextent that collections from such assigned Accounts exceed the amount of the Obligations, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which such excess amount shall not accrue interest in favor of Borrowers but shall be delivered, at Borrower’s expense, available to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record Borrowers upon written request in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all terms of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agentthis Agreement.
(e) Borrower hereby agrees toBorrowers (i) shall provide prompt written notice to their current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Agent, for itself and the benefit of the Lenders, has been granted a lien and security interest in, upon and to cause Servicer toall Accounts payable by such Account Debtor, take the following protective actions shall direct or shall have directed each Account Debtor to prevent destruction of records pertaining make payments to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file appropriate Blocked Account, in each case not later than (A) no later than fifteen ten (1510) calendar days following after the Closing Date and occurrence of an Event of Default, or (B) no later than fifteen ten (1510) calendar days following after the end of each calendar month following Person becomes an Account Debtor, and hereby authorize Agent and/or Lenders, upon any failure to send such directions within the Closing Date. Subject applicable time period, to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review send any and all Portfolio Documents similar directions or notice to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Agent in Borrower’s or Servicer’s possession its Permitted Discretion to secure Agent, for the benefit of itself and any Lenders, and all data and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systemseffectuate the intentions of the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit, Term Loan, and Security Agreement (Advanced Nutraceuticals Inc/Tx)
Collateral Administration. (a) All tangible Collateral (except Collateral in the possession of Backup Servicer or AgentDeposit Accounts) will at all times be kept by Borrower or Servicer Purchaser at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) calendar days prior written notice to AgentSeller, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ hereby agrees .
(b) Purchaser shall keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit such records to deliver to the Agent and Backup Servicer orSeller on such periodic bases as Seller may request.
(c) Whether or not an Event of Default has occurred, upon the request any of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of AgentSeller’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right upon reasonable noticeright, at any time during normal business hours, in the name of Agent or Seller, any designee of Agent Seller or BorrowerPurchaser, to verify the validity, amount or any other matter relating to the Collateralany Accounts of Purchaser. Borrower Purchaser shall cooperate fully with Agent Seller in an effort to facilitate and promptly conclude such verification process.
(d) To expedite collection, subject to the terms of the Master Subordination Agreement, Purchaser shall endeavor in the first instance to make collection of its Accounts for Seller. In addition Subject to any provision the terms of any Loan Documentthe Master Subordination Agreement, Agent Seller shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party Debtors owing Accounts to Leases held by Borrower Purchaser that their Leases Accounts have been assigned to Agent Seller and to collect such Leases Accounts directly in Agent’s its own name, for the benefit of itself and the Lenders, name and to charge collection costs and expenses, including reasonable attorney’s fees, to BorrowerPurchaser.
(be) As and when determined by Agent Seller in its sole discretion, Agent Seller will perform the searches described in clauses (i) and (ii) below against BorrowerPurchaser (the results of which are to be consistent with Purchaser’s representations and warranties under this Agreement), Servicer and Holdingsall at Purchaser’s expense: (i) UCC searches with the Secretary of State of the jurisdiction of organization of Purchaser and the Secretary of State and local filing offices of each jurisdiction where BorrowerPurchaser maintain their respective executive offices, Servicer a place of business or Holdings is organizedassets; and (ii) lien searches with the United States Patent and Trademark Office and the United States Copyright Office;and (iii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreement
searched under clause (ci) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its Permitted Discretionabove.
(df) In respect of Upon notice from Seller that the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable LawMaster Subordination Agreement has been terminated, Borrower shall deliver to Agent or, at the request of Agent, Servicer Purchaser (i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the original Portfolio Documents; and Concentration Account, (ii) originals or true copies of shall provide prompt written notice to each Account Debtor that Seller has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct each Account Debtor to make payments to the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandingsappropriate Lockbox Account, and other receipts Purchaser hereby authorizes Seller, upon any failure to send such notices and payment authorization agreements, which shall be delivered, at Borrower’s expensedirections within ten calendar days after the date of this Agreement (or ten calendar days after the Person becomes an Account Debtor), to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent.
(e) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review send any and all Portfolio Documents in Borrowersimilar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Seller to create and perfect Seller’s or Servicer’s lien on any collateral and effectuate the intentions of the Acquisition Documents. Upon notice from Seller that the Master Subordination Agreement has been terminated, Purchaser shall immediately deliver to Seller all items for which Seller must receive possession to obtain a perfected security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any and other similar instruments constituting Collateral (collectively, “Control Collateral”). Until such time as the Master Subordination Agreement has terminated, all data and other information relating Control Collateral shall be held by CapitalSource for the benefit of Seller for the purpose of perfecting Seller’s security interest therein. Concurrently with the termination of the Master Subordination Agreement, CapitalSource shall deliver all Control Collateral to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systemsSeller.
Appears in 1 contract
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of Backup Servicer or AgentCustodian) will at all times be kept by Borrower or Servicer at the locations set forth on Schedule 5.18B 5.18A hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ Borrower hereby agrees to deliver deliver, or cause to the Agent and Backup Servicer or, upon the request of the Agentbe delivered, to the Servicer, on or prior to the date of each Revolving AdvanceCustodian, the Verification Custodian Deliverables for with respect to each Lease that is Pledged Loan (other than as it relates to be added to the Collateral in connection with such Revolving Advance. From and an Approved Syndicated Loan) within five (5) Business Days after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance related Borrowing Date. All Pledged Loans shall, regardless of their location, be deemed to be under Agent’s dominion and control (with files so labeled) and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent or any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral, including inventory appraisals. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification processprocess or inventory appraisals. In addition to and notwithstanding any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party any Person owing amounts pursuant to Leases held by Borrower Pledged Loans that their Leases have Pledged Loan has been assigned to Agent and to collect such Leases amounts directly in Agent’s its own name, for the benefit of itself and the Lenders, name and to charge collection costs and expenses, including attorney’s reasonable attorneys’ fees, to Borrower, provided, however Borrower shall endeavor in the first instance to make collection of such amounts for Agent.
(b) As and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where BorrowerBorrower are organized and/or maintain their executive offices, Servicer a place of business or Holdings is organizedassets; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreementsearched under clause (i) above.
(c) Within five (5) Business Days after the applicable Borrowing Date, Borrower shall deliver, or cause to be delivered, to Agent or Custodian any Attached Equity Interests and all items of Collateral that Agent must receive possession of to obtain a first-priority perfected Lien in such Collateral to the extent not already in the possession of Agent or Custodian.
(d) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its Permitted Discretion.
(d) In respect sole discretion. If requested by Agent upon or at any time after the occurrence and during the continuation of the portion an Event of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable LawDefault, Borrower shall execute and deliver to Agent or, at the request of Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true formal written assignments of all of its Pledged Loans as Agent may request, together with copies of claims, invoices and/or other information related thereto. To the truth-in-lending disclosure statements andextent that collections from such assigned Pledged Loans exceed the amount of the outstanding Obligations, if required upon confirmation by AgentAgent of such excess amount and so long as no Default or Event of Default has occurred and is continuing, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which such excess amount shall be delivered, at Borrower’s expense, refunded to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record upon written request in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all terms of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agentthis Agreement.
(e) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Borrower’s Collateral: (i) if Borrower maintains its Collateral records on a manual system, such records shall be kept in a fire proof room or on no less than thirty (30) calendar days following the end of each calendar month, a record of all payments on Pledged Loans and all other matters relating to the Collateral shall be placed in an off-site safety deposit box (and Agent shall have access to such safety deposit box); or (ii) if the Collateral records are computerized, Borrower agrees to create an electronic file “back-up” of the computerized information regarding the Collateral and to provide Agent and Backup Servicer monthly with a an electronic copy of such file “back-up” information (A) no later than fifteen (15) days following prior to the Closing Date and (B) no later than fifteen thirty (1530) days following the end of each calendar month following the Closing Date.
(f) Promptly upon learning of the anticipated payment in full of any Pledged Loan, Borrower shall give written notice thereof to Agent. Subject Within two (2) Business Days after the actual payment in full of any Pledged Loan and delivery of the proceeds thereof to the limitations Blocked Account in accordance with Section 2.4 hereof, Borrower shall give written notice thereof to Agent and Custodian of such payment.
(g) Notwithstanding anything set forth herein to the contrary, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then upon Agent’s receipt of (i) a written request for the release of Agent’s Lien on any Pledged Loan, (ii) unless otherwise agreed to in writing by Agent in its sole discretion, evidence acceptable to Agent that such Pledged Loan is being sold to a third-party, non-Affiliate of Borrower on an arms-length basis for which purchase no Affiliate of Borrower is providing seller financing in connection with such sale and (iii) receipt of payment (or payment into escrow pursuant to a mechanism acceptable to Agent) of an amount equal to (A) 100% of the net proceeds of the sale of such Pledged Loan plus (B) the amount required (if any) to cause borrower to be in compliance with Section 6.7 2.6 hereof following the release of such Pledged Loan, Agent shall, promptly, at Borrower’s cost and expense, deliver to Borrower (i) any Collateral relating to such Pledged Loan and (ii) Borrower-prepared release, satisfaction, discharge and/or termination agreements or similar instruments or filings in relation to such related Collateral and any other UCC or similar filings made by Agent in relation thereto, in form and substance reasonably satisfactory to Agent. Upon the request of Borrower, Agent agrees to provide a payoff letter, in form and substance acceptable to Agent, for the release of Agent’s Lien on any such Pledged Loan, subject to the terms and conditions of this Agreement, Agent at Section 2.11(g). Borrower shall bear the responsibility of recording any such documents and shall bear all times during regular business hours out-of-pocket expenses (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, disketteslegal fees and disbursements of Agent or any Lender) in connection with such payoff letter, tapes release, reassignment and other computer software and computer systemsdelivery.
Appears in 1 contract
Sources: Loan and Security Agreement (Harvest Capital Credit Corp)
Collateral Administration. (a) All tangible Collateral (except Collateral in the possession of Backup Servicer or AgentLender) will at all times be kept by Borrower or Servicer Borrowers at the locations set forth on Schedule 5.18B hereto, principal offices of Borrowers and shall not, without thirty (30) calendar days prior written notice to AgentLender, be moved therefrom other than to another location as specified in such locationnotice, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ hereby agrees to deliver to the Agent and Backup Servicer or, upon the request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases All receivables constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under AgentLender’s dominion and control and the related receivable documents shall be deemed to be in AgentLender’s possessionpossession and control. Any of AgentLender’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right upon reasonable noticewritten notice (email shall suffice), at any time during normal business hours, in the name of Agent Lender or any designee of Agent or BorrowerLender, to verify the validity, amount or any other matter relating to the Collateral. Borrower Borrowers shall cooperate fully with Agent Lender in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent Lender shall have the right at all times after the occurrence and during the continuance of an Event of Default (i) to notify Account Lessees party Debtors that all receivables of Borrowers including, if to Leases held by Borrower that Account Debtors, their Leases receivables have been assigned to Agent Lender and that all collections from such receivables shall be paid directly to collect such Leases directly in Agent’s own name, for the benefit of itself and the LendersLender, and (ii) to charge Borrowers for any collection costs and expenses, including reasonable attorney’s fees, to Borrowerincurred by Lender.
(b) As and when determined by Agent Lender in its sole discretion, Agent Lender will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings such Borrowers is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where BorrowerBorrowers maintains its jurisdiction of organization, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended ; and Restated Loan and Security Agreement(iii) U.S. Bankruptcy court searches.
(c) Borrower Borrowers shall keep accurate and complete records of the Collateral Collateral, and all payments and collections thereon and shall submit such records to Agent Lender on such periodic basis as Agent Lender may request in writing (email shall suffice) in its Permitted Discretion.
(d) In respect reasonable discretion. Upon the receipt of written notice from Lender following the occurrence and continuation of an Event of Default, Borrowers shall cooperate and cause Borrowers to cooperate with Lender, and if Lender elects to attach or associate in electronic format a notation, legend, stamp or other identification to all or any portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Lawto evidence the pledge thereof to Lender, Borrower shall deliver to Agent orsuch notation, at the request of Agentlegend, Servicer (i) the original Portfolio Documents; and (ii) originals stamp or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which identification shall be delivered, at Borrower’s expense, in form and substance acceptable to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, Lender in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent.
(e) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systems.
Appears in 1 contract
Collateral Administration. (a) All tangible Collateral (except Collateral in the possession of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. ▇B▇▇▇▇▇▇▇ hereby agrees to deliver to the Agent and Backup Servicer or, upon the request of the Agent, to the Servicer, on or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation, Backup Servicer, shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent or any designee of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral. Borrower shall cooperate fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such Leases directly in Agent’s own name, for the benefit of itself and the Lenders, and to charge collection costs and expenses, including attorney’s fees, to Borrower.
(b) As and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower, Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreement.
(c) Borrower shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent on such periodic basis as Agent may request in its Permitted Discretion.
(d) In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent or, at the request of Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered, at Borrower’s expense, to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agent.
(e) Borrower hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systems.
Appears in 1 contract
Sources: Loan and Security Agreement (Katapult Holdings, Inc.)
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of Backup Servicer or AgentCustodian) will at all times be kept by Borrower or Servicer at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice to AgentLender, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ Each of Borrower and each Foreclosure Subsidiary hereby agrees to deliver to the Agent and Backup Servicer or, upon the request of the Agent, to the Servicer, on or prior to the date of each Revolving AdvanceCustodian, the Verification Custodian Deliverables for each Lease that is to be added to the Collateral promptly but in connection with such Revolving Advance. From and after the funding any event within five (5) Business Days of each any Advance hereunder, the originals of all Leases constituting Collateral made in respect of such Advance the underlying Account. All Accounts shall, regardless of their location, be deemed to be under Agent’s Lender's dominion and control and deemed to be in Agent’s Lender's possession. Any of Agent’s Lender's officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right upon reasonable notice, at any time during normal business hours, in the name of Agent Lender, or any designee of Agent Lender or BorrowerBorrower or any Foreclosure Subsidiary, to verify the validity, amount or any other matter relating to the Collateral. Each of Borrower and each Foreclosure Subsidiary shall cooperate fully with Agent Lender in an effort to facilitate and promptly conclude such verification process. In addition Each of Borrower and each Foreclosure Subsidiary shall endeavor in the first instance to any provision make collection of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such Leases directly in Agent’s own name, its respective Accounts for the benefit of itself and the Lenders, and to charge collection costs and expenses, including attorney’s fees, to BorrowerLender.
(b) As and when determined by Agent Lender in its sole discretion, Agent Lender will perform the searches described in clauses (i) and (ii) below against Borrower, Servicer each of Borrower and Holdingseach Foreclosure Subsidiary: (i) UCC searches with the Secretary of State and local filing offices of Loan and Security Agreement (Ashford) each jurisdiction where Borrowersuch Person is organized and/or maintains its executive offices, Servicer a place of business or Holdings is organizedassets; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreementsearched under clause (i) above.
(c) Upon Lender's request, each of Borrower and each Foreclosure Subsidiary shall promptly deliver to Lender or Custodian all items for which Lender must receive possession to obtain a perfected Lien and security interest and all notes, certificates, and documents of title, Chattel Paper, warehouse receipts, Instruments, and any other similar Instruments constituting Collateral, in each case to the extent not already in possession of Lender or Custodian, or in the case of a participation interest, in possession of the participating lender.
(d) Each of Borrower and each Foreclosure Subsidiary shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent Lender on such periodic basis bases as Agent Lender may request in its Permitted Discretion.
(d) In respect sole discretion. If requested by Lender upon or at any time after the occurrence and during the continuation of an Event of Default, each of Borrower and each Foreclosure Subsidiary shall execute and deliver to Lender, formal written assignments of all of its Accounts as Lender may request, including all Accounts created since the date of the portion last assignment, together with copies of claims, invoices and/or other information related thereto. To the extent that collections from such assigned Accounts exceed the amount of the Collateral consisting outstanding Obligations, such excess amount shall not accrue interest in favor of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Law, Borrower shall deliver to Agent or, at (except as provided in the request of Agent, Servicer (iBlocked Account Agreements) the original Portfolio Documents; and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which but shall be delivered, at Borrower’s expense, available to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all terms of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to AgentSection 2.16.
(e) Each of Borrower and each Foreclosure Subsidiary (i) upon the receipt of written notice from Lender, shall provide prompt written notice to each Account Debtor that Lender has been granted a Lien on and security interest in, upon and to all Accounts payable by such Account Debtor, (ii) shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account to the extent required by Section 2.5, and hereby authorizes Lender, upon any failure to send such directions, to send any and all similar directions or notice to such Account Debtors, (iii) shall ▇▇▇▇ each Mortgage Loan Note or any other Mortgage Loan Document constituting Chattel Paper and in the possession of Borrower (by way of stamp or other method satisfactory to Lender) the following language: "THIS DOCUMENT IS SUBJECT TO A SECURITY INTEREST IN FAVOR OF, AND PLEDGED AS COLLATERAL TO, CAPITALSOURCE FINANCE LLC," and (iv) shall do anything further that may be lawfully required by Lender in its Permitted Discretion to secure Lender's interest, in the Collateral, and effectuate the intentions of the Loan Documents.
(f) Each of Borrower and each Foreclosure Subsidiary hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the such Person's Collateral: create an electronic file (i) if such Person maintains its Collateral records on a manual system such records shall be kept in a fire proof cabinet or on no less than a monthly basis, a record of the computerized information regarding all payments on Accounts and all other matters relating to the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) placed in an off-site safety deposit box (and Lender shall have the right access to access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systems.such safety deposit box); or
Appears in 1 contract
Sources: Loan and Security Agreement (Ashford Hospitality Trust Inc)
Collateral Administration. (a) All tangible Collateral (except Deposit Accounts and Collateral in the possession of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer at the locations set forth on Schedule 5.18B hereto, hereto and shall not, without thirty (30) 30 calendar days prior written notice to Agent, be moved therefrom other than to another such locationtherefrom, and in any case shall not be moved outside the continental United States. ▇▇▇▇▇▇▇▇ hereby agrees Borrower shall keep accurate and complete records of its Collateral and all payments and collections on Accounts and shall submit such records to deliver to the Agent and Backup Servicer or, upon the request on such periodic bases as Agent may request. Any of the Agent, to the Servicer, on 's or prior to the date of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral in respect of such Advance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to be in Agent’s possession. Any of Agent’s any Lender's officers, employees, representatives or agents, including, without limitation, Backup Servicer, agents shall have the right right, upon reasonable notice, at any time notice to Borrower during normal business hours, in the name of Agent or any Lender, any designee of Agent Agent, any Lender or Borrower, to verify the validity, amount or any other matter relating to the Collateral; provided, however, no such notice shall be required during the occurrence and continuation of any Default or Event of Default. Borrower shall cooperate fully with Agent and Lenders in an effort to facilitate and promptly conclude such verification process. In addition to and notwithstanding any provision of any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance continuation of an Event of Default to notify Account Lessees party Persons owing Accounts to Leases held by Borrower that their Leases Accounts have been assigned to Agent and to collect such Leases Accounts directly in Agent’s its own name, for the benefit of itself and the Lenders, name and to charge collection costs and expenses, including reasonable attorney’s 's fees, to Borrower. Borrower shall endeavor in the first instance to make collection of its Accounts for Agent, for the account of Lenders.
(b) As and when determined by Agent in its sole discretionPermitted Discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower (the results of which are to be consistent with Borrower's representations and warranties under this Agreement), Servicer and Holdingsall at Borrower's expense: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where BorrowerBorrower and/or any Guarantors are organized and/or maintain their respective executive offices, Servicer a place of business or Holdings is organizedassets; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches, in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets. Katapult SPV-1 LLC – Amended and Restated Loan and Security Agreementsearched under clause (i) above.
(c) Upon Agent's request, Borrower shall immediately deliver to Agent all items for which Agent must receive possession to obtain a perfected Lien and security interest and all notes, certificates, documents of title, certificates of title, chattel paper, warehouse receipts, instruments, and any other similar instruments constituting Collateral, if any; provided, however, so long as no Event of Default exists and is continuing, Borrower shall not be required to deliver certificates of title to Agent or perfect Agent's Lien thereon if such certificates of title relate to Collateral having an aggregate value of less than $50,000.
(d) Borrower shall, and shall cause its Subsidiaries to, keep accurate and complete records of the Collateral its Accounts and Inventory and all payments and collections thereon and shall submit such records to Agent on such periodic basis bases as Agent may request reasonably request. In addition, (i) if Accounts of Borrower in its Permitted Discretion.
(d) In respect an aggregate face amount in excess of $50,000 become ineligible because they fall within one of the portion specified categories of ineligibility set forth in the definition of Eligible Receivables, or (ii) if Eligible Inventory Costs of Borrower in an aggregate face amount in excess of $50,000 become ineligible because they fall within one of the Collateral consisting specified categories of any Lease which is evidenced by an electronic record that is not a transferable record under Applicable Lawineligibility set forth in the definition of Eligible Inventory Costs, Borrower shall deliver notify Agent of such occurrence no later than five (5) Business Days following such occurrence and the Borrowing Base shall thereupon be adjusted to Agent or, at reflect such occurrence. After the request occurrence and during the continuation of Agent, Servicer (i) the original Portfolio Documents; and (ii) originals or true copies an Event of the truth-in-lending disclosure statements andDefault, if required requested by Agent, lease applications, any related Account Lessee’s acknowledgments Borrower shall execute and understandingsdeliver to Agent, and shall cause each of its Subsidiaries to execute and deliver, formal written assignments of all of its Accounts as Agent may request, including all Accounts created since the date of the last assignment, together with copies of claims, invoices and/or other receipts and payment authorization agreementsinformation related thereto. To the extent that collections from such assigned accounts exceed the amount of the Obligations, which such excess amount shall not accrue interest in favor of Borrower but shall be delivered, at Borrower’s expense, promptly remitted to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record upon written request in accordance with Applicable Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein to the contrary, held in Agent’s possession, custody, and control until all terms of the Obligations have been fully satisfied or Agent expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify) on the related electronic record the pledge of such Lease by Borrower to Agentthis Agreement.
(e) Borrower hereby agrees to(i) shall provide prompt written notice to its current bank to transfer all items, collections and remittances to the Concentration Account, (ii) shall provide prompt written notice to each Account Debtor that Agent, for itself and the benefit of the Lenders, has been granted a lien and security interest in, upon and to all Accounts applicable to such Account Debtor and shall direct or shall have directed each Account Debtor to make payments to the appropriate Blocked Account, and Borrower hereby authorizes Agent and/or Lenders, upon any failure to cause Servicer to, take send such notices or directions within ten (10) calendar days after the following protective actions to prevent destruction of records pertaining to the Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly with a copy of such file (A) no later than fifteen (15) days following the Closing Date and (B) no later than fifteen (15) days following the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 date of this AgreementAgreement (or ten (10) calendar days after the Person becomes an Account Debtor), Agent at all times during regular business hours (provided, that any electronic materials available on a website or through other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to access and review send any and all Portfolio Documents in Borrower’s or Servicer’s possession similar notices and directions to such Account Debtors, and (iii) shall do anything further that may be lawfully required by Agent and/or any Lender to secure Agent, for the benefit of itself and all data Lenders, and other information relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or computer records including, without limitation, diskettes, tapes and other computer software and computer systemseffectuate the intentions of the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Acorn Products Inc)